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Introduction

Criminal informants provide important information to the justice system, but they also pose serious risks. We hope this website will help attorneys, journalists, advocates, and families to better understand this vital area of public policy.

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WRONGFUL CONVICTIONS

Criminal informants are famously unreliable. Jailhouse snitch testimony often leads to wrongful conviction. Over 45 percent of all innocent people exonerated from death sentences were wrongfully convicted based on the testimony of a lying criminal informant. This makes snitches the leading cause of wrongful conviction in U.S. capital cases.

YOUNG INFORMANTS

Police sometimes use children as young as 14 as informants. These children may be exposed to drugs, violence, and other criminal activities as they work to get information for their handlers. Some have been killed. California and New Jersey have laws restricting the practice: in other states police have discretion to use juvenile informants.

INFORMANT CRIMES

Some informants are serious criminals who receive leniency for their own crimes. The FBI has been known to use murderers as informants. Many jurisdictions permit drug dealers to continue selling drugs in exchange for cooperation. In 2011, the crimes committed by FBI informants alone totaled over 5,600.

URBAN COMMUNITIES PAY THE PRICE

Informants are a staple of drug enforcement. This means that where drug enforcement is heaviest, informant activity is also heaviest. Because drug arrests occur disproportionately in low-income African American neighborhoods, those residents must live with the crime, violence, and distrust that go with criminal informant use.

REFORM

Many states are rethinking their criminal informant policies. Some have passed laws restricting the use of jailhouse snitch witnesses. Some have created new rules for disclosure and accountability. The U.S. Congress is considering a number of reforms that would improve transparency and safety. In the future, the laws governing criminal informants will likely look very different than they do today.

Recent Blog Posts

Wednesday, December 23, 2009

The New York Times just ran this piece entitled Muslims Say FBI Tactics Sow Anger and Fear. The piece describes the perennial tension between law enforcement's need to gather information and the needs and rights of groups and communities against whom informants are used. From the article:

Since the terror attacks of 2001, the F.B.I. and Muslim and Arab-American leaders across the country have worked to build a relationship of trust, sharing information both to fight terrorism and to protect the interests of mosques and communities. But those relations have reached a low point in recent months, many Muslim leaders say. Several high-profile cases in which informers have infiltrated mosques and helped promote plots, they say, have sown a corrosive fear among their people that F.B.I. informers are everywhere, listening. "There is a sense that law enforcement is viewing our communities not as partners but as objects of suspicion," said Ingrid Mattson, president of the Islamic Society of North America, who represented Muslims at the national prayer service a day after President Obama's inauguration. "A lot of people are really, really alarmed about this."

The book's section on political informants discusses the law and history of this longstanding tension. On the legal side, the government has substantial authority to use informants to monitor religious and political activities. Notwithstanding the First Amendment's guarantee of free speech and association, courts have made clear that the use of informants and infiltrators alone does not infringe the First Amendment rights of political or religious groups. This means that the FBI can legally send informants into mosques and churches to observe people and events. If those informants go further and actively interfere with constitutionally protected activities, the First Amendment may be violated.

The implications of informant infiltration, however, go beyond legal rules. Cases from the Vietnam War and civil rights eras describe how government informants undermined anti-war, civil rights, socialist, and other political organizations by provoking conflict and instigating illegal activities. Thirty years ago, MIT sociology professor Gary Marx wrote a seminal piece on the informant provocateur phenomenon entitled "Thoughts on a Neglected Category of Social Movement Participant: The Agent Provocateur and the Informant," 80 Am. J. Sociol. 402 (1972). Marx argued that informants can actually become an integral and problematic part of social organizations, warning that "undercover agents can seriously distort the life of a social movement; they can serve as mechanisms of containment, prolongation, alteration, or repression."

Tuesday, December 15, 2009

WSJ Blog picked up this lengthy story from the Philadelphia Inquirer, documenting rampant witness intimidation, violence, and the inability of city prosecutors to prosecute violent crimes. One witness saw his own written statement to police posted on a wall as a flier, with the following words scribbled on it: "Don't stand next to this man. You might get shot." From the Inquirer:

"It's endemic. People are frightened to death," said District Attorney Lynne M. Abraham. "We've had witness after witness intimidated, threatened, frightened." And the city cannot guarantee their protection. "That fear, that's real," said Jamie Egan, a former city prosecutor. "When people would ask me if I could guarantee their safety, I would say, 'Unfortunately, I cannot.'" Abraham has long fought for more money to protect and relocate witnesses in criminal cases. For 15 years, she has repeatedly complained, to no avail, that the city's program was underfunded and failing to meet a crucial need. Local funding for witness relocation is a fraction of the spending in the vaunted federal witness-protection program. Efforts to pump city money into the local program have failed year after year.

Witness intimidation is part and parcel of the more general violence, insecurity, and lack of resources in so many inner city neighborhoods. According to the National Institutes of Justice, witness intimidation is a longstanding problem in poor, high-crime communities like Philadelphia, especially in gang-dominated neighborhoods. Over a decade ago, studies warned about localized violence and witness intimidation in areas of concentrated poverty and crime. Stories like the Inquirer's suggest that the problem is now even more widespread. As I argue in the book, states need resources comparable to the federal WITSEC program to protect witnesses, particularly poor witnesses who lack resources themselves and may be stuck in violent neighborhoods. As a parent of a murdered young witness mourned in the Inquirer article:

"If you see something, you better look the other way. That's a sad thing to say to a victim, but I'm the number one candidate saying 'Don't tell nothing unless you can take care of yourself, because the city don't have nothing in place to help you.'"

The gambit seems to be working very well. The IRS continues to get thousands of small case tips a year. But in fiscal 2009, ended Oct. 30, the IRS Whistleblower Office also logged big case leads on 1,900 taxpayers, up from 1,246 in fiscal 2008, the first full year the new law was in effect. Dozens of these tips involve purported tax losses of $100 million or more. Sure, those are just allegations. But informants "often provide extensive documentation to support their claims,"' the Whistleblower Office noted in a report. The Treasury Inspector General for Tax Administration, in a separate report, added up all the 2008 tips and found that $65 billion in unreported income was alleged.

Perhaps the most famous case to date involves Bradley Birkenfeld, an employee of the Swiss bank UBS who gave the IRS information on how wealthy Americans were hiding money with his employer. Although Birkenfeld himself faces a 40-month prison sentence, he may be able to keep millions in reward money--another new rule. Again from Forbes:

Before the new law, IRS Whistleblower Officer Director Stephen Whitlock notes, "if you participated in the tax noncompliance--you could have been the accountant doing the ministerial activity--you could be flat-out barred" from a reward. Now such a functionary is eligible for a full reward, even if he is convicted of, say, stealing from the company he squeals on. An informant who "planned and initiated" a tax scheme is still eligible for a reduced award--unless he's convicted for that planning role.

In other words, the IRS is moving closer to the snitching norm, in which admitted criminals reap benefits from their cooperation. At the same time, the IRS informant program may be running into resistance. In the second story, a federal judge has ordered the IRS to return documents provided by an informant who stole the documents from the company Monex. Apparently the court was not content to let the government decide which stolen Monex documents were privileged, although the government is likely to get many of the documents back in the end. As Forbes frames the problem, "How far can the government go in using information from an insider and what should be the procedures for handling that information?" As I explain in the book, this concern for the privacy and rights of criminal targets--and the concomitant restrictions on informant use--is more characteristic of white collar investigations in which defendants tend to be well-resourced and well-defended, and is notably lacking in the street- and drug-enforcement arena.